BVA9508022 DOCKET NO. 90-27 669 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran, who is the appellant in this case, served on active duty from December 1965 to October 1969 and from January 1970 to January 1976. He had service in the Republic of Vietnam. In July 1988, the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California, (since relocated to Oakland, California) denied service connection for multiple sclerosis, claimed, in part, as a residual of exposure to Agent Orange. The veteran disagreed with that decision, and this appeal ensued. During the course of the appeal, a United States District Court voided all benefit denials under 38 C.F.R. § 3.311a(d), the regulation governing benefits for the residuals of Agent Orange exposure. Nehmer v. United States Veterans Administration, 712 F. Supp. 1407 (N.D. Cal. 1989). The District Court remanded the case to the VA for changes in the regulation in accordance with its decision. In January 1991, Board of Veterans' Appeals (Board) remanded the case to the RO for consideration under the forthcoming regulations. In November 1994, following the issuance of the new regulations governing the residuals of Agent Orange exposure, the RO confirmed and continued the denial of service connection for multiple sclerosis. Thereafter, the case was returned to the Board for further appellate consideration. In November 1994, the RO also denied service connection for chronic skin disability but the veteran has not as yet disagreed. REMAND During his hearing on appeal in February 1990, the veteran testified that he experienced manifestations of multiple sclerosis in service, including impaired vision, dizziness, psychiatric problems, tingling in his legs, and urinary problems. He also claimed other manifestations, such as headaches, defective hearing, and tinnitus. He testified that in service in 1970, while in North Carolina, he experienced a loss of sight in his right eye and right-sided weakness. He stated that he was in transit at the time and that records of that treatment are unavailable. The veteran also testified that since service he had experienced visual impairment and leg weakness with spasticity and cramping. The service medical records show treatment for headaches and defective hearing. They also show that in October 1967, the veteran reported blurred vision and headaches. In 1972, he was treated for psychiatric complaints. From May to July 1972, it was noted that he had genitourinary difficulties, including dysuria. In February 1973, he complained of a loss of balance and coordination. In May 1974, he reported a smoky film over his eyes and "pinpoint" vision. In October 1975, the veteran was seen for osteoarthritis in his right knee. Two days earlier, he had reportedly had right knee numbness for about thirty-five minutes. On a request for orthopedic consultation, dated that same month, it was noted that the veteran had episodes of paresthesia in the right lower extremity. During a VA examination, conducted between November 1984 and February 1985, it was noted that the veteran had residuals of a meniscectomy of the right knee. He reportedly had an area of hypoesthesia in the lateral aspect of the right lower leg inferior to the scar. In 1987, the veteran was diagnosed as having multiple sclerosis. In May 1988, K. W. Maleshenko, M.D., reported that the veteran had first contacted him in September 1985 for that disorder. Dr. Maleshenko's records are not contained in the claims folder. The veteran underwent VA examinations in 1980, 1984/5, and 1987; however, he has not had a VA neurologic examination for compensation purposes. The Board has a statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In light of the foregoing, the Board is of the opinion that such development is warranted prior to further appellate consideration. Accordingly, the case is REMANDED for the following actions: 1. After obtaining any necessary authorization, the RO should contact K. W. Maleshenko, M.D., and obtain copies of the veteran's medical records. All records so obtained should be associated with the claims folder. Failures to respond or negative replies to any request should be associated with the claims folder. 2. The RO should contact the veteran and ascertain precisely where he was treated in 1970 for loss of sight in the right eye and loss of use of his right side. Then, the RO should attempt to procure the records of that treatment. The Board notes that he was in transit at the time. If treatment was rendered at a military facility, the RO should then contact the National Personnel Records Center (NPRC) and request those records. If unsuccessful, the RO should contact the facility and request those records. If treatment was rendered by a private care giver or at a private facility, the RO should ask the veteran to supply the dates of treatment, as well as the names and addresses of the care giver or institution. After obtaining appropriate authorization, the RO should contact the facility and obtain copies of applicable treatment records. Failures to respond or negative replies to any request should be obtained in writing and associated with the claims folder. 3. The RO should contact the veteran and inquire as to whether he received any other treatment prior to 1987 for possible manifestations or findings of multiple sclerosis. He should furnish the VA with the dates of treatment, as well as the names and addresses of the care givers who treated him or the names of the institutions where he was treated. After obtaining the proper authorizations, the RO should request copies of the veteran's treatment records. Failures to respond or negative replies to any request should be associated with the claims folder. Of course, the RO need not obtain copies of any records currently on file. 4. When the foregoing actions are completed, the RO should schedule the veteran for an examination by a board- certified neurologist, if available, to evaluate the veteran's multiple sclerosis. All appropriate tests and studies should be performed. The examiner should offer an opinion as to whether it is at least as likely as not that the multiple sclerosis had its onset in service or during the first seven years after service. If so, the examiner should cite specific manifestations in the record. Prior to the examination, the claims folder must be made available to the examiner so that the relevant medical history may be reviewed. 5. When the requested development has been completed, the RO should readjudicate the claim for service connection for multiple sclerosis. Should the decision remain adverse to the veteran, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. 38 C.F.R. § 20.302(c) (1994). Thereafter, if in order, the case should be returned to the Board for further appellate consideration. By this REMAND, the Board intimates no opinion as to the final disposition of the issue. The purposes of the REMAND are to procure clarifying medical information and to ensure due process of law. The veteran need take no action unless he is notified. J. J. SCHULE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).